Law Line - Family Law

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Grounds for Divorce

When filing for a divorce you need to mark what is called “a ground for divorce.” Basically this is why you are asking for the divorce. The first, and most common, is called irreconcilable differences. This is a no fault ground. This simply means you and your spouse just do not get along and do not wish to be married anymore. For a divorce to be granted on the grounds of irreconcilable differences, both spouses must agree the marriage is over and file an answer stating that irreconcilable differences exist.

There a several fault grounds for a divorce. The most common are:

Separation of one or more years. This means the you and your spouse have not lived together or slept together for one or more years.

Adultery: means that your spouse cheated on you during the marriage and you have not slept together since finding out about the adultery.

Desertion is when either spouse leaves or deserts the other for 6 months or more.

You cannot get a divorce on a fault ground based only on your own testimony. You will need to bring evidence or a witness with personal knowledge to testify in court to at least some of the facts you are claiming.

Can you pick more than one ground? Yes, you can mark one or more. You can even mark the no fault ground and a fault ground at the same time.

If your spouse lives in West Virginia, you can file in the county you last lived together or the county where your spouse now lives.

If your spouse does not live in West Virginia, you may file for divorce in the county which you both last lived together or in the county where you currently live.

To file a custody case the court looks to the “home state” of the child. This means the child must have lived here for 6 months before the case is filed. For a child younger than 6 months old the child has to be born here.

What county should handle a custody case?

That depends. Initial custody actions must be filed in the county where the child is living. Any case asking for a change of custody should be filed where the last order was entered.

What if there’s already been a custody order in another state?

Generally, the court which entered the last order will keep jurisdiction of a case. That means you will have to go to that court to ask for change. However, there are limited factors that may allow West Virginia court’s to take over the case.

How is property divided in a divorce?

First of all, only “marital property” is divided up in a divorce. “Separate property” goes to the spouse that owns it. So, which is which?

Marital Property is stuff that was bought or earned during the marriage. Household goods like beds, furniture, televisions, appliances, or computers. Saving accounts built up during the marriage. Retirement or pension accounts accumulated during the marriage. Cars bought during the marriage, no matter whose name is on the title. Houses, boats, ATVs or land bought during the marriage. All of these are Marital Property.

So what is “separate property”? There are three common examples.

First, anything you owned before you were married. Suppose you had a car in your name before the marriage. It is your separate property after the marriage.

Second, anything you bought with your money after the marriage broke. If you bought a new car after you moved out, it’s your separate property.

Third, anything that was given to you personally and individually. Even if you got it while you were married. For example, Grandma Jane in her will gave her antique clock to “my granddaughter Sally.” Or your uncle gave you a special deer rifle on your birthday.

Property issues in a divorce case can get really complicated in a hurry. There are lots of possibilities that we can’t cover in a message like this. If you have unusual or unclear property questions, you should talk with a lawyer.

What happens to marital property in the divorce?

First of all, the two spouses should try to agree on how to split up the property. Courts will almost always accept an agreed property division, unless the agreement is really unfair to one side.

Otherwise the court will divide the marital property. The goal is to give each party equal value. That might mean one party gets a few big items, while the other party gets a bunch of smaller items.

Sometimes it just isn’t possible to divide things evenly. In that case the court can order that property be sold. The money from the sale will be divided. This often happens with a house that isn’t paid off yet, and neither spouse can “buy out” the other spouse’s half-share.

Finally, the Court can divide pensions and retirement funds earned during the marriage. This requires a special order, after the regular divorce order is done. You will probably need a lawyer to write that special pension division order.

For more information on dividing property in a divorce, read this article.

Child Support

Child support is set by a formula in state law. The most important factors are: the income of each parent, the number of overnights each parent has with the children, and the number of children the parties have. There are also other factors the court may consider.

Here’s what the court will need from each parent:

Income before taxes

Number of children

Is the child covered by health insurance? How much does it cost? Which parent pays for it?

Are there child care expenses? How much how much does it cost? Which parent pays for it?

Are there any other children that the parent has to support?

What if a parent doesn’t want to work? The court can assume the parent earns full time minimum wage, even if that parent is not actually working or earning anything. This is called “attributing” income to the parent who is not working. There are exceptions, if you are disabled, or you are caring for young children, or you are in school full-time. In those cases the court can decide not to “attribute” income in calculating child support.

In most child support cases the court will order that child support be collected through “income withholding.” This means the employer takes the support money out of the parent’s paycheck before the parent is paid. The support money is then sent to the Bureau for Child Support Enforcement. The Bureau deposits the money in the other parent’s account. There can be some delay in the first month or two, in getting all of this set up.

What county should handle a child support case? Initial child support actions must be filed in the county where the parent with custody lives. Any case asking for a change of child support should be filed in the county where the last order was entered.

When can child support be changed? Any time there is a 15% increase or decrease of a party’s income or a change in time you spend with your child. But this doesn’t happen by magic. If your income changes, it is up to you to file papers to ask for a change. If you don’t file the papers, nothing changes.

Changing Child Support

Child support will stay the same until a judge signs a new order that makes child support higher or lower. A case must be filed in the courthouse to ask for child support to go up or down. A judge has to decide any change in child support. You can start the case yourself. The Bureau for Child Support Enforcement may also file the case. You may also want a lawyer to help you file the case.

When can child support be changed?
The judge can order a change in child support when there has been a substantial change in circumstances. If child support goes up or down by at least 15 percent, this would be a substantial change. Sometimes, if your income goes up or down by 15 percent, this could mean that there has been a substantial change. This could be from a new job, or the loss of a job. Usually, if one person gets a small raise from their boss, this would not be a substantial change in circumstances. However, there are other numbers that are considered in the formula.

How do you ask for a change in child support?
You must file a petition in court. There is a form to use. The form is on the West Virginia Supreme Court Web site. It is three pages long. You can find it in the family court forms part of the Web site. The other party in the case, usually the mother or father, has to be notified that you are asking for a change. When the other parent gets the notice, they have the chance to go to court to talk to the judge. They can tell the judge about whether they think child support should be changed. Everyone should bring proof of their income.

What numbers are considered in the formula?
Child support is set by a formula in state law. The most important factors are: the income of each parent, the number of overnights each parent has with the children, and the number of children the parties have. There are also other factors the court may consider.

Here’s what the court will need from each parent:

Income before taxes

Number of children

Children’s health insurance information: How much does it cost? Which parent pays for it?

Child Custody

You have children. You and the other parent don’t live together. The two of you can’t agree on a “parenting plan” for when the kids will spend time with each parent.

You have to file a custody petition with the family court. You ask the judge to decide how you and the other parent will share custody of your children. How does the judge decide?

The most important thing for the judge is “what is best for the children.” The case is not about what you want. It’s not about what the other parent wants. It’s about what is best for the children.

There are many things the judge will consider.

Where the children will be more safe and stable.

How well can you and the other parent work together and agree on how to raise your children.

How did the two parents divide up child care duties when they were living together? Did one parent do “most” of the child care? Or was child care shared pretty equally? Do the children already have a strong bond with one parent or the other?

The importance of maintaining regular contact by each parent with the children, and the children with their brothers and sisters.

How far apart the parents live.

With older children, the Judge can consider the preference of the children.

Usually, children love both their parents, and both parents love their children. The courts do not want to interfere with the love between parent and child. So the usual starting point is to try for a parenting plan where both parents share time with the children as equally as possible. This will work if both parents are responsible, and can provide a safe and stable home for their children.

Sometimes, though, there are reasons why equal shared parenting is not best for the children. The judge may believe that one parent cannot or will not safely care for the children. That parent may have limitations placed on his or her time with the children.

The types of things will the judge consider in deciding to limit a parent’s contact with the children include:

If a parent has abused or neglected children.

If a parent has a drinking or drug problem.

If a parent has abused the other parent.

Or, if a parent has interfered with the other parent’s proper lawful access to the children.

Sometimes the judge will appoint a “guardian ad litem.” This is a neutral, independent person who will interview the parties and collect information. The guardian will talk with the children, the parents, and anyone else who has important information. The guardian then tells the judge what the guardian thinks would be best for the children. The judge then considers the wishes of each parent and the recommendation of the guardian in deciding the parenting plan for of the children.

Changing Child Custody

You have a child custody order and parenting plan. But something has changed. The parenting plan no longer works very well. When and how can you ask for a modification of the court ordered parenting plan?

West Virginia law permits changes in parenting plans in two situations.

Here’s the easy one. Suppose you and your ex have already been doing things differently from the court order for at least six months. You both saw a change was needed. You both worked out a new pattern. Maybe you didn’t actually discuss making a change, but things just worked out that way. And it’s been working fine for at least six months. In this situation the court will change the order to follow what you and your ex and your child have already been doing. This is called a “de facto” change.

The other situation is a lot harder to show in court. You will have to prove there has been a significant “change of circumstances” AND that the new parenting plan you want is in your child’s “best interests.”

What is a significant change in circumstances? It’s something important in your child’s life that changed from when the last custody order was done. The change has to be important and significant, not small and trivial. And the change has to be something that isn’t good for your child.

Danger to your child is always a “significant change in circumstances.” If you believe your child is in danger, you should immediately call the police or CPS or take the child for medical treatment. Once you do those things, then go to court for a change in the parenting plan. If you don’t do those things, it doesn’t look like you really believe there is danger. Actions speak louder than words.

Another significant “change in circumstances” is if your child is now 14 years old and prefers something different. Once your child is 14, the judge will usually let him decide how he wants to spend time with each parent. Your child’s choice must be reasonable.

On the other hand, suppose you don’t like the new person your ex is seeing now. Or suppose the child care used by your ex isn’t very convenient for you. Those things won’t be enough for a modification of the parenting plan.

To get any change in the parenting plan you must tell the court how the change is better for your child. It’s not about how the change is better or easier or more convenient for you. It’s about what is best for your child.

Shared custody and moving away

You and your ex have a custody order. Now one of you wants to move to another location. What comes next?

Suppose it’s just a temporary move, for 90 days or less. A new court order normally would not be required. The moving parent should tell the non-moving parent what’s going on. The two parents should work out some temporary changes. When the moving parent returns, the court ordered plan will go back into effect.

But suppose a permanent move would “significantly impair” the other parent’s time. West Virginia law has some clear requirements.

60-day advance written notice of the move is required. If 60 days is literally not possible, give as much advance notice as is possible.

What has to be in the notice? Five things:

The date of the move;

The new address, if known;

The purpose and reasons for moving;

A proposed new parenting plan that would be fair to both parents; and

Information for how the non-moving parent can contact the moving parent to discuss possible new arrangements.

There is a form in the circuit clerk’s office you can use for this. You don’t have to use the form. But you do have to give written notification that includes all five items.

If you and your ex can’t agree on a new plan, the family court judge will have to decide what happens. What will the judge look at?

First, whether the move is in “good faith.” Suppose the judge thinks the move is just to keep the other parent away from the kids. Bad things will happen.

Second, whether the move is for a “legitimate purpose.” Here are five common examples that will usually stand up as legitimate:

to be close to significant family or other support

for substantial health reasons, of parent or child

to protect the safety of the moving parent, a child, or a household member

to pursue “significant” job or educational opportunities. Notice the important word “significant.”

Or, to be with a spouse who is living elsewhere, or who is moving to pursue significant job or educational opportunities.

Third, whether the proposed new location is reasonable for the purpose. Moving to Alaska to go to back to school is a lot different than moving 100 miles to go to school.

What if the court rules that the move is not legitimate? The court has a lot of choices. The judge could change the plan any way that seems good for the children. The judge could transfer full custody to the non-moving parent. The judge could tell the moving parent to keep following the old plan even after they move. The court could require the non-moving parent to pay the cost of transporting the children for visits.

For more information on changing a parenting plan when a parent moves, read this article.

Grandparent Visitation

Grandparents do not automatically have a legal right to visit their grandchildren. However, grandparents can ask a court for visits with a grandchild that lives in West Virginia. Grandparent means biological grandparent, anyone ever married to a grandparent or anyone who had custody of the grandchild’s parent.

A grandparent starts the case by filing a written request with the family court. Filing fees may apply. It is very important that the papers are filed in the county where the grandchild lives or else the court can’t hear the case.

A grandparent can file at any time, but each case is different. Some factors will make it harder for a grandparent to get visits. For example, in many cases grandparents should wait until divorce or custody cases between the grandchild’s parents are closed.

No matter what, grandparents need to show the court two things. First, they must show that the visitation is in best interest of the grandchild. This is simple. The grandparent just needs to tell the court why the grandchild will benefit from visits.

Second, grandparents must show that visits won’t interfere with the relationship between the grandchild and his or her parents. This can be harder.

Grandparents must be flexible. Grandparents should consider making a request to have visits with the grandchild while the parents are at work. Grandparents should be cautious about requesting visits during high-demand times like weekends, holidays or birthdays. More importantly, they should never use visits to try to challenge or change parenting decisions that they might not agree with. Courts are very protective of parental rights. Any attempt to undermine the parents may cause a grandparent to lose a case or even have existing visits taken away.

That’s the grandparent visitation process in a nutshell. Before you file, however, it is often best to try to reach an agreement with the grandchild’s parents outside of court. This costs less and is usually faster. More importantly, grandparents often receive more time this way. Remember that the court sets a minimum amount of visits – often as little as a few hours once or twice a month – and any time beyond that is controlled by the parents. Working out issues with the grandchild’s parents may seem hard, but it can help start a pattern of trust and cooperation that often benefits everyone more in the long run.